Patna High Court
Rajeshwari Devi vs Keshori Devi And Ors. on 22 May, 1980
Equivalent citations: 1981(29)BLJR37
JUDGMENT M.P. Varma, J.
1. It was on 2nd June, 1960 that the plaintiff filed a petition before the District Judge, Shahabad at Arrah praying to grant a letter of administration of an unregistered Will, dated 24-12-1942, executed by one Jagnarain Dubey, who died on 7-1-1948. The said Will was annexed with the petition. The case was transferred to the Court of Additional District Judge for hearing, who by his judgment and decree non-suit the plaintiff, against which this appeal arises.
2. The case of the plaintiff is that Jagnarain Dubey executed the said Will while he was in a sound state of mind and body, and with full understanding of the contents thereof. The plaintiff (Rajeshwari Devi) is the daughter of the testator Jagnarain Dubey from his second wife Sumitra Devi (defendant No. 1), who died during the pendency of the suit. Whereas Kishori Devi (defendant No. 2) is the daughter of Jagnarain Dubey from his first wife, named Raj Kuer. Defendants 3, 4 and 5 are sons of defendant No. 2. In the Will half of the properties of the testator has been bequeathed to the plaintiff, one fourth has been given to Kishori Devi-defendant No. 2 and the remaining one fourth share has been donated to a High School known as Jagnarain Vidyalaya founded by the testator himself. Sumitra Devi defendant No. 1, i.e. the second wife of the testator and the mother of plaintiff has been given only a claim for maintenance, but she was appointed as receiver of the property of the testator under the terms of the Will. It was made clear that Sumitra Devi was to manage the properties for the benefit of the beneficiaries in the Will.
Plaintiff in her petition for letter of administration alleged that Sumitra Devi (defendant No. 1) was not managing the affairs and she was not giving due share to the plaintiff. The petition filed in the Court was registered as Misc. case No. 40 of 1960 which was converted into T. S. No. 6/62 (Probate).
2. All the defendants jointly filed objection praying to dismiss the petition for grant of letter of administration on the allegation stated therein.
The case of the defendants is that the Will in question was a forged and fabricated document. Jagnarain Dubey never executed any testamentary document, much less the Will in question. Jagnarain Dubey was ill for a month or so and was not in a sound state of mind sometime prior to his death, which occurred on 7-1-1943. Taking advantage of this situation, enemies of the defendants forged and fabricated this document in conspiracy with attesting witnesses.
3. The scribe of the Will in question was said to be a trusted employee of the testator named Sahmatullah (defendant No. 1). Sumitra Devi also executed a Will on 23-2-1949 in favour of her daughter, the plaintiff, her step daughter defendant No. 2 Keshri Devi, which also was ascribed by the same scribe Sahmatullah and attested by Umanath Ojha, who happened to be the attesting witness to the disputed Will in question. It was submitted that had the Will in question been a genuine one, Sahmatullah and Umanath Ojha would not have figured in the second Will, dated 23-2-1949 executed by the defendant No. 1. Apart from it, defendant No. 1 as a full owner after the death of her husband, executed that Deed of gift in favour of her step daughter i.e. defendant No. 2 and in favour of her children defendant Nos. 3, 4 and 5 and gave possession thereof. It has been further stated that the contents of the Will would show that it runs counter to the ordinary sentiments of a testator. Though the alleged Will was executed on 24-12-1942 and the testator Jagnarain Dubey died only a fortnight after 7-1-1943, the petition for grant of letter of administration was filed long after on 2-6-1960. There is no explanation for this inordinate delay in filing the petition for grant of letter of administration.
4. On consideration of the evidence on record, the trial Court held that the plaintiff failed to prove that the Will in question is a genuine document. The Court gave a finding that the Will was forged one and it was created some time after the death of the testator and the Court, as such, dismissed the suit with costs,
5. In appeal the counsel has mainly confined himself to the point that the finding of the Court below are erroneous on facts. The pertinent point which attracts my attention is that the Will in question is alleged to have been executed on 24-12-1942 and the testator died soon after. It did not see the light of the day for long seven years. Had the Will been a genuine document, described by Sahmatullah, a trusted servant of the family, the beneficiary ought to have taken steps and in fact would not have failed to take steps for obtaining letter of administration at the earliest opportunity. According to the Will the beneficiaries are Rajeshwari Devi, the plaintiff's heir, Kishori Devi (defendant No, 2) and Jagnarain Vidyalaya of which the attesting witness Umanath Ojha happened to be the Principal. I have already stated above that in the Will half share has been bequeathed to the plaintiff; one fourth share has been donated to Jagnarain Vidyalaya, whereas one fourth has been given to Kishori Devi (defendant No. 2). It is obvious that the plaintiff, who has appeared in the trial Court as P.W. 2 is the main beneficiary having half share in the alleged Will. Admittedly she is the daughter of Jagnarain Dubey, the testator. Still she as well as Umanath Ojha, examined as P.W. 12 stated that they had no knowledge of the alleged Will till the year 1959. Question is whether the explanation of the plaintiff and that of Umanath Ojha (P.W. 12) should be accepted. It appears to me that they are feigning in Court and I agree with the finding of the trial Court in this regard for reasons as hereinafter.
6. In the petition filed for the letter of administration, the plaintiff has not given any explanation for such an inordinate delay in filing the same. The question of delay was raised in the caveat filed by the defendant and in evidence the plaintiff tried to create some explanation which was rightly rejected.
P. W. 2 Syed Abu Talib Khan who is one of the attesting witnesses, stated that though he was an attesting witness to the Will, he had no knowledge of the recital of the document. He has further stated that Jagnarain Dubey had told him that Jagnarain was executing the Will as he wanted to give his properties to his wife, daughter and to school and that he did not want to make the recitals known to others immediately. P.W. 4 in his statement in cross examination gave out as follows In my presence he (testator) made no disclosure of the Will to any one except the witness....
He further stated:
I did not then know how he was going to make the deposition. I could know it when actually the document was being scribed out.
Umanath Ojha (P.W. 12) spoke in a similar tone that he had no knowledge of the terms of the alleged Will till the end of 1959 or till beginning of 1960. No one told him regarding the recitals of the Will. He further stated that he learnt that some provisions were made for the school as well in the alleged Will. Similarly the plaintiff herself tried to explain the delay that the alleged Will was given to her about six years. She enquired from Sahmatullah as to why he had concealed the same for such a long time, he gave out that he concealed the fact due to fear of her mother as four annas share was Willed to the school. As against this P. W. 21, before whom Sahmatullah made over the Will to the plaintiff stated that Sahmatullah suppressed the Will and got it concealed and kept it with him as the school was to get some property and he did not want that the school should know about it and get the property.
7. In my opinion the aforesaid explanation given by the plaintiff or her witnesses is not correct. Some of them say that the Will was concealed due to the fear of Sumitra Devi, whereas others speak that Sahmatullah did not want that the property should go to the school.
8. What agitates my mind most is as to what prevented Sahmatullah, who was custodian of the Will to destroy the same after the death of the testator, if he did not want the Will to see the light of the day. There is another aspect also. Sahmatullah was the most trusted employee of the testator Jagnarain. Under the Will some property was given to the school which was founded by Jagnarain himself with a view to perpetuate his name. In that case it was expected that Sahmatullah being loyal to his master would have given due publicity to the Will to fulfil the desire of his master and to perpetuate his name. Then again the plaintiff in his evidence has said that Sahmatullah did not hand over the Will as he was afraid of her mother. It is significant to note that when Sahmatullah is alleged to have handed over the Will the mother plaintiff was alive. All these are facts, which speak a lot against the appellant.
9. It is all the more surprising that Umanath Ojha, headmaster of the school, the attesting witness of the Will had no knowledge about the contents and the terms and recitals thereof. P. W. 4 has admitted that he could know of the Will when it was ascribed and none except the witnesses had knowledge of the Will. In view of this statement of P.W. 4, I am not inclined to accept the evidence of Umanath Ojha that he had no knowledge of the recitals and contents of the Will and at the same time it is hard to believe that this principal of the school would have preferred to keep silent for such a long time and would not have coaxed Sahmatullah to hand over the Will either to him or to the plaintiff for filing a petition for grant of probate as the school, admittedly, was one of the beneficiaries. This leads to the only irresistible conclusion that there was no such Will and the said Jagnarain Dubey had not executed any before his death.
10. The aforesaid finding knocks down the plea of the appellant that the Will in question was a genuine document. Strenuous efforts have been made to persuade us to hold that it was a genuine one and our attention was drawn to the evidence of the hand-writing expert (P.W. 18) who opined that there was no forgery so far as the signature of Jagnarain Dubey was concerned. It was also urged that Sahmatullah kept the Will locked up in his chest only because he being the well-wisher of the family did not like that any part of the properties should go to the school. It appears very strange that tostators's wife Sumitra was made a receiver of the properties, but how is it that she was not taken into confidence by her husband and the Will was not made over to her. I have already discussed all the issues in detail and I do not feel inclined to accept the contention that there was any such sincerity in Sahmatullah's heart. Very surprising fact is that the deceased testator Jagnarain Dubey intended to keep the fact of execution of the Will a secret, but I find that one of the attesting witnesses is Sri Abu Mohammad. This witness is stranger to the family and there is evidence to indicate that there was some litigation going on between the deceased Jagnarain Dubey and this Abu Mohammad (vide P.W. 1) and the case was pending at the time of the execution of the disputed Will as appears from Exhibit No. 3. So, there appears to be no force in the argument of the Counsel for the appellant that the late filing of the probate case was due to an attempt on the part of Sahmatullah to maintain the secrecy. The alleged signature of Jagnarain Dubey on the disputed Will as well as on the undisputed documents were referred to by the parties while taking us through the evidence of the two experts, P.W. 1. 8, examined on behalf of the plaintiff and D.W. 5, examined on behalf of the defendant. On consideration of their evidence, I find that P.W. 18 has submitted that there were differences in the two sets of writings-one on the disputed Will and the other on the undisputed document and this admission is quite sufficient to create a reasonable doubt regarding the genuineness of the disputed Will coupled with the evidence of D.W. 5, who has stated that signature of the testator on the disputed Will cannot be in the pen of the testator Jagnarain Dubey.
11. Apart from above, there are many other circumstances, but to cut short my judgment, I am not referring the evidence of all other witnesses, Mention therefore, may be made of the evidence of P.W. 17 Sidheshwari Prasad a pleader, who was examined to show that it was he, who drafted the disputed Will. The alleged draft prepared by him on the basis of which the final Will was drawn up was never produced in Court. It may further be noted that the statement regarding preparation of the draft Will was for the first time disclosed in the Court at the trial stage. This gentleman had never worked earlier for Jagnarain Dubey nor he had any concern with him. Neeldoss to repeat here that evidence had been led to show that the testator wanted to keep the contents of the Will a close secret and in such a situation I am not able to reconcile to accept the statement of P. W. 17 when I noticed why this witness was engaged for the job who had no concern with the testator at earlier stage. He was a stranger to him and no reason is assigned why P.W. 17 was picked up to prepare the Will when everyone wanted to keep it confidential and a close secret. In the circumstances, I do not feel inclined to accept the testimony of other witnesses of the plaintiff i.e. P.Ws. 3, 8, 16 and 19, who have attempted to depose that the disputed Will contains the signature of late Jagnarain Dubey,
12. Some argument has been advanced to show that at the time of execution of the Will Jagnarain Dubey was in a fit state of mind and health. In view of my finding given above, regarding the genuineness of the Will it does not appear essential to examine this issue, but nonetheless, I must say that evidence on this score is not sufficient to hold either way. Substratum of the whole discussion leads to a finding that Jagnarain Dubey had not executed any Will in his life time and this document has been fabricated sometime after to suit the convenience of the plaintiff and others interested therein.
13. In the result, I do not find any merit in the appeal. It accordingly fails and is dismissed as such. There Will be no order as to costs.
S. Ali Ahmad, J.
14. I agree.